Age discrimination tough to prove

Age discrimination hits more than just the pocketbooks of older workers.

A Supreme Court ruling makes it tough for workers to prove age bias in court.

Workers can file a claim with the Equal Employment Opportunity Commission.

Are you feeling picked on because you are older than your co-workers? Do you suspect you lost your job because you're older -- and because you made more money than younger workers?

Age discrimination is a common complaint. A recent survey for AARP reported 64 percent of respondents thought that people older than 50 face age discrimination in the workplace. Some 34 percent said they had either personally faced age discrimination in the last four years or they know someone who has.

The impact of age discrimination is more than just financial. "Older workers who think they are discriminated against are always so angry and hurt. Their personal identity is tied up in their jobs," says Howard Eglit, professor of law at Illinois Institute of Technology Chicago-Kent College of Law, and an expert on age discrimination issues.

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But feeling like a victim of age discrimination and being able to prove it are two very different things.

Landmark ruling

Proving age discrimination has never been easy, but in 2009, a U.S. Supreme Court ruling made it even more difficult. In Gross v. FBL Financial Services, the court changed the rules. Supreme Court Justice Clarence Thomas wrote in the majority decision that the employer doesn't have to show it would have taken action regardless of age, even when an employee has evidence that age was a motivating factor in that decision.

In fact, going forward, workers have to prove that age was the primary factor for discrimination rather than just one factor.

This standard for age discrimination is much harder to prove than the standards for race and gender discrimination, and many people think that it is unfair.

In March, Sens. Tom Harkin, Charles Grassley and Patrick Leahy introduced the Protecting Older Workers Against Discrimination Act, which would amend the Age Discrimination in Employment Act of 1967 to make it easier for workers to prove age discrimination and retaliation.

But Civic Impulse, which tracks legislation and rates its likelihood of passage, assigns the bill a 1 percent chance of being enacted.

So where do you go from here if you think you've been a victim of age discrimination?

Gather evidence

The best proof catches the boss doing something clearly discriminatory. For instance, as Eglit says, the boss sends out a "really stupid" memo that reads, "Don't hire anyone over 40" or "We have to get rid of all these old guys and get new blood."

That's the kind of proof you need to make the case a slam-dunk. But that kind of clear-cut substantiation doesn't come around very often. Most of the time, you'll have to accumulate less dramatic evidence.

In March, the Equal Employment Opportunity Commission, or EEOC, in attempting to clarify when layoffs were discriminatory, focused on the phrase "facially neutral." Facially neutral means that an action might look neutral, but its impact isn't.

For instance, an employer that puts into effect a reduction in force that eliminates highly paid employees may have adopted a discriminatory policy because most highly paid workers are older, so the policy is discriminatory despite being "facially neutral."

If you think you have been a victim of such a policy, attorney Edward Ellis, a shareholder and co-chair of the whistle-blowing and retaliation practice group in the Philadelphia law firm Littler Mendelson, says you have to prove it by identifying that most of the people who were laid off as a result of this policy or a similar one were older.

It will be tough to prove, he says, because layoffs based on "reasonable factors," even though they hit older people hardest, have been upheld in previous court challenges. But the March decision by EEOC could put the ball in your court, he says.

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